IN THE COUNTY COURT OF VICTORIA
AT Melbourne
common law DIVISION	Revised
Not Restricted
Suitable for Publication	
SERIOUS INJURY LIST		

Case No.  CI-20-03936 

STEVEN JOHN LEAHY 	Plaintiff	
		
v		
		
STATE OF VICTORIA	Defendant	

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JUDGE:	His Honour Judge Lauritsen 	
WHERE HELD:	Melbourne	
DATE OF HEARING:	6 May 2021	
DATE OF JUDGMENT:	17 August 2021 	
CASE MAY BE CITED AS:	Leahy v State of Victoria 	
MEDIUM NEUTRAL CITATION:	[2021] VCC 1131 		

REASONS FOR JUDGMENT
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Subject:	ACCIDENT COMPENSATION 
Catchwords: 	Serious Injury – permanent serious impairment or loss of a body function – function associated with the lumbosacral spine affecting the right lower limb – aggravation of a pre-existing injury – pain and suffering only – credit – Victoria Police – cause of injury, wearing a ballistic vest
Legislation Cited:	Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)(d)
Cases Cited:	Sabo v George Weston Foods [2009] VSCA 242; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; TTB SMS Pty Ltd v Reading [2020] VSCA 103; Ansett Australia Ltd v Taylor [2006] VSCA 171
Judgment:	Leave granted.

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Mr C O’Sullivan 	Adviceline Injury Lawyers 	
			
For the Defendant	Mr C A Miles 	Wisewould Mahony 	

HIS HONOUR:

Introduction 
1	Mr Leahy seeks leave to commence a proceeding for the recovery of pain and suffering damages for a serious injury suffered arising out of or in the course of the plaintiff’s employment with Victoria Police.  He does so under s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”).  
2	He relies upon paragraph (a) of the definition of “serious injury”, alleging the impaired body function is his spine, in particular, his lumbosacral spine and its effect on his right lower limb.  He confines the consequences of his impairment to pain and suffering.  
3	His counsel described his case in these terms: 
“… this case is an aggravation case based on a period that the plaintiff had to wear this vest, and the change in the symptomatology and the change in consequences since.  So, the case will be put that as a result of the injury sustained wearing the vest he has serious injury consequences.”  
4	The defendant’s position is that the plaintiff does not establish any lasting, credible, ongoing effects of the vest wearing.  
Circumstances 
5	Mr Leahy is now 53.  He is employed full-time as a child protection worker.  
6	Before joining Victoria Police in 2008.  he worked as a social worker for ten years.  
7	In June or July 2013, Mr Leahy felt back pain while arresting an offender.  He lodged a claim for compensation.  It was accepted.  He continued working, mainly in his normal duties, but sometimes in light duties when his back bothered him.  Afterwards, he experienced ongoing lower back pain with right leg pain sometimes.    
8	On 11 November 2013, Mr Leahy saw a general practitioner at the  Melton Medical and Dental Clinic.  He gave a history of five to six months of low back pain due to this incident.  The general practitioner also diagnosed sciatica.  Mr Leahy was advised to rest and given a certificate of capacity.  CT scans occurred that day.  The L2-3 and L3-4 discs and facets were normal.  For the L4-5 disc, the radiologist commented: 
“Small central disc protrusion particularly to the right of middle.  The exiting nerve roots are not compromised.  The forming L5 nerve roots on the right may be impinged upon by the disc protrusion and symptomatic.  Facets are unremarkable.”
9	For the L5-S1 disc, he commented: 
“Small central disc protrusion.  The exiting nerve roots are not compromised.  The forming S1 nerve roots particularly those on the right are abutted by the disc protrusion and might be symptomatic.  The facets are unremarkable.”   
10	To relieve his pain, he was prescribed Tramal and undertook massage, physiotherapy and chiropractic treatment.  
11	After 30 December 2013, Mr Leahy did not attend this clinic again until 30 September 2016 but in that period attended a clinic in Bacchus Marsh and also attended a physiotherapist and chiropractor.  
12	In 2015, Victoria Police introduce new ballistic vests.  Surprisingly, there is little description of the vest in any of the material.  Mr Leahy said of them: 
“The vests were heavy and were not tailored to individual police officer’s body sizes.  My vest was heavy and uncomfortable and would often ride up my back.”
13	During 2016, the wearing of these vests became compulsory for operational members.  There was increased back pain as soon as he wore the vest all the time and also increased pain in his right leg.  He described the effect of the vest:
”Now, the vest, when it’s worn the initial vest that was purchased, the one size fits all.  It was very thick.  Never really moulded or sculpted to the individual’s back.  Basically with that restriction being inside a divisional van, which is also a confined, a really confined space, there was no room to move the seats back at all.  Plus wearing the equipment belt, the vest restricted movement.  Made movement very cumbersome, very awkward, and also placed that additional pressure on the back.”  
14	On 30 September 2016, Mr Leahy re-attended the Melton clinic.  He was treated conservatively.  
15	On 4 November 2016, Mr Leahy complained or notified Victoria Police about an incident occurring on 3 October 2016.  This is recorded in a document entitled “Incident’/Investigation Output form”.  It appears the document was compiled by Edward Lappin.  
16	The document quotes from Mr Leahy’s complaint about what happened and the corrective action taken.  Part of the former reads:
“What I have done is the sciatic nerve which is now permanent, causing daily pain through my right buttock, right leg and hamstring down to my right foot where I have numbness and pins and needles.”
17	The document records an investigation by Brian Anderson.  He found “IOEV/equipment carriage” was a major contributing factor.  Beside the word “Findings” there is the word “resignation”, which suggests the form was completed after 15 March 2018, which is the date of Mr Leahy’s resignation from Victoria Police.     
18	On 25 November 2016, he lodged a claim for compensation.  He  implicated the 2013 incident and the exacerbation of the condition of his back by the constant wearing of the vest.  He continued working full time.  
19	In late 2016 and early 2017, while working in divisional vans, Mr Leahy experienced a lot of pain in his back and right leg.  He attended upon his general practitioner a number of times.  
20	As is the case with members of the Victorian police force, they are likely to be posted.  As was the case with Mr Leahy, for he was posted to Ouyen in 2017.  For treatment, he now attended a local clinic, the Mallee Track Medical Centre.  His first attendance was on 7 June 2017.  
21	Meanwhile, events were developing regarding his employment.  On about 1 June 2017, Mr Leahy was stood down from his police duties pending a disciplinary hearing.  Until then, he was performing normal duties.  
22	On 7 June 2017, he attended the Mallee Track Medical Centre for the first time.  He was given a certificate of capacity.  He wanted this and other certificates to cover the cost of his treatment.  He had been receiving treatment for his back before he was stood down from a chiropractor in Bacchus Marsh.
23	On 11 October 2017, MRI scans were performed.  The overall conclusion of the radiologist was: 
 “Lumbosacral disc degeneration and disc bulging but no disc protrusion or central canal stenosis.  Mild degree of exit foraminal stenosis bilaterally at L5-S1 (L5 nerve roots).”
24	Specifically, in relation to the L5-S1 disc, he said: 
“At L5-S1 there was a broad based annular disc bulge.  No large disc protrusion was seen and there was no significant central canal stenosis.  Exit foramina containing the L5 nerve roots were mildly narrowed and this was slightly more pronounced on the left but not critically so and clinical significance uncertain.  There was moderate facet joint OA at this level.”
25	Dr Raelene Hiddle is a chiropractor.  He attended upon her on 14 December 2017.  He saw her once or twice more before she referred him to a chiropractor in Nagambie, whom he saw on 29 January 2018.
26	On 1 December 2017, an Assistant Commissioner of Police wrote to Mr Leahy, advising him of the convening of a disciplinary hearing into his conduct.  The writer advises he had conducted a preliminary investigation and believed Mr Leahy has committed a breach of discipline and charged him with the breach.  There are four charges and each charge is highly particularised.  
27	The first charge alleges Mr Leahy forged a document to obtain an increase in his credit card limit.  It also alleges an attempt to deceive Victoria Police by claiming removal charges after being posted from Bacchus Marsh to Ouyen.  
28	The second charge alleges Mr Leahy engaged in a prohibited form of secondary employment, namely, with his brother’s security business.  It also alleges improper use of police emails.  
29	The third charge alleges Mr Leahy’s inappropriate use of the LEAP database on eleven occasions.  
30	The fourth charge alleges Mr Leahy sent 116 images of crime scenes and other images from his Victoria Police email address to his business email address.  
31	The letter concluded by setting out the possible determinations which the person conducting the enquiry could make.  These range from a reprimand to dismissal from Victoria Police.       
32	On about 27 December 2017, Mr Leahy started employment with the child protection area of the Department of Health and Human Services (DHHS).  He is based in Seymour.  He had applied for this job about four to six weeks before he started.  By the time of resignation, he had been working for DHHS for several months.  
33	On 14 February 2018, Mr Leahy attended the Goulburn Valley Medical Centre and saw Dr Lun, who issued a certificate of capacity and prescribed Panadeine.  
34	On 15 February 2018, Mr Leahy wrote to the Chief Commissioner of Police resigning from Victoria Police.  He gives four weeks’ notice with his resignation becoming effective on 13 March 2018.  He gave no reason for his resignation.  
35	At the time he was still facing an internal disciplinary proceeding.  According to Mr Leahy, his reasons for resigning were: 
“… the back pain and not wanting to stay in the police force any more with the restriction of what I can do in my job.”   
36	On 28 August 2018, there were further CT scans of the lumbosacral spine.  The radiologist found: 
“The alignment of the lumbar spine is normal.  There is mild reduction of disc space height at L5-S1 with end plate degenerative change.  The vertebral body heights appear normal.  No spondylolisthesis or facet joint arthropathy.  The prevertebral soft tissues and both sacroiliac joints appear normal.  
 At L1-2, L2-3, L3-4 and L4-5 levels, no disc bulge, central canal or foraminal narrowing.  
 At L5-S1 level, there is mild right paracentral disc bulge causing mild narrowing of the central canal and the right subarticular recess.  Possible impingement of the descending right S1 nerve root is suspected.  Mild bilateral foraminal narrowing.”   
37	On  9 October 2019, Mr Leahy claimed impairment benefits and his claim was accepted.  
38	In June 2020, Mr Leahy was stood down from his duties; this time by the DHHS.  He first knew of the allegations against him when he received a letter on 2 June 2020.  These allegations caused him stress and he lodged a claim for compensation.  He was interviewed about his claim.  On 23 November 2020, he made a written statement, covering 18 pages.   
39	The allegations led to a disciplinary hearing.  There were four allegations.  Two were dismissed and two proven.  The proven allegations consisted of swearing on the phone and working for his brother without the permission of DHHS.  
40	In January 2021, Mr Leahy returned to work but was assigned to a different role.  Since returning, his mental state has improved “out of sight”.   However, it has taken time.  His drinking is slowly decreasing.  On average, he now drinks  four or five stubbies of full strength beer each week.  
41	Despite the lockdown and other restrictions due to the COVID-19 pandemic, he has socialised as much as he could in those circumstances.  
Current 
Pain
42	Since swearing his first affidavit on 31 March 2020, nothing has changed regarding his experience of pain.  It is a constant pain on right side of his lower back.  It averages a “solid” 4 out of 10 on a visual pain scale.  Intermittently, he experiences a sudden grab of severe pain.  It is a shooting pain which passes through his right buttock and leg to the toes of the right foot.  This is more severe pain, reaching 8 to 9 out of 10.  It reaches that level “when I have that impinging instantaneous pressure on the nerve”.  This pain lasts for a short time but it leaves his back as more painful than normal for one or two hours.  This type of pain occurs three or four times a week.  Apart from the “shooting pain”, he experiences flare ups of pain most days.  His back pain is aggravated by standing, straining or the jolting of his back.  
Gym
43	Once Mr Leahy attended the gym regularly.  He stopped for a while but now attends infrequently.  During the 2020 COVID-19 lockdown, he could not go to the gym.  Before the lockdown, he carried out exercises recommended by his chiropractor.  They consisted of a roll or roller to manipulate his back, a very light pin weighted machine and bands.  The weights are 2.5 to 5 kilograms, sometimes 7.5 to 10 kilograms.  As opposed to his visits in 2014, his gym sessions are shorter and less heavy and repetitive.
44	He exercises using a rubber band which he does at home and at the gym.   
Employment 
45	His suspension at DHHS came to an end.  He has returned to work and is building up to full time.  This is a slow recovery due to the events in June 2020.  
46	The DHHS disciplinary proceedings did affect his mental health and lifestyle.  The fact of those proceedings made him more irritable, more fatigued, more depressed and more anxious.
47	He can sit for up to two hours before he needs rest and a break for exercise.  He still experiences back and leg pain in his current job, which involves a lot of sitting at a desk.  Working in pain adversely affects his concentration particularly as the day goes on.  
Sport
48	Organised sport has never been a significant matter in Mr Leahy’s life.  He last played tennis 16 years ago, squash 20 to 30 years ago and golf 19 years ago.  
49	Nevertheless, since he cannot now swing a tennis racquet or change direction suddenly, tennis is out of the question.  Overall, he cannot play sports and games with his older children 
50	In his November 2020 statement, Mr Leahy gave the impression he stopped sporting activities due to stress.  In cross-examination, he explained: 
“… he was asking me about what activities and interests that I had so I was answering his question.”  
51	However, after being stood down by DHHS, he was depressed and part of the reason he stayed at home and did not go out was due to the state of his mental health.  
52	He tries to walk most days.  He walks for 20 to 30 minutes.  Sometimes the pain forces him to stop prematurely.  
Domestic activities 
53	Since July or August 2020, Mr Leahy has lived in his brother’s home in Epsom, near Bendigo.  Before that, he lived in a caravan.  His brother lives part of the week there and the rest in Frankston.  In late April 2021, Mr Leahy’s son came to live in the Epsom home.  Mr Leahy maintained his involvement in his brother’s business was limited to living at his brother’s home and feeding his brother’s dogs, which were used in his business.  
54	He struggles with housework because of the bending.  His son helps with the mowing, cleaning, gardening and cleaning the guttering.  
55	His ability to carry a weight is limited to carrying relatively light shopping bags.  
56	He can drive a motor vehicle for 30 minutes before needing to stop, get out of the vehicle and move around.  He does this because of increasing pain and stiffness.  
Alcohol
57	Being stood down by DHHS contributed to the increase in his drinking alcohol.    
Sleep
58	Mr Leahy sleeps poorly.  He regularly wakes up and having woken, does not go back to sleep.  The DHHS disciplinary proceeding contributed to his poor sleep.  He was prescribed Zopiclone for help for mental health and anxiety, not with sleep.  It was prescribed after bringing his stress claim.  Dr Ratnayake mentions the prescription of the hypnotic, Zopiclone, for use at night.  Plainly, it would aid his sleep.       
59	Mr Leahy takes Lyrica 300 milligrams twice daily for neuropathic pain and Mersyndol Forte, an analgesic, usually once a day, and Mirtazapine, an antidepressant.  His pain is not well controlled by Lyrica and Mersyndol despite the entry of Dr Atef on 3 December 2020.  Lyrica reduces the pain “a little bit” and Mersyndol offers relief within one hour but the extent of the relief is not disclosed.  He has asked Dr Atef for stronger medicine but was refused.  He uses a TENS machine for his back most days and uses deep heat and/or Voltaren Gel regularly.  
60	Mr Leahy sees his chiropractor about every month.  He has seen her regularly over the past two years.  Her treatment gives him temporary relief from pain.  
61	He attends his general practitioner monthly, mainly for the prescription of medicines.  
62	Apart from Mr Nair, Mr Leahy does not see any specialist.  He saw Mr Nair in 2019 and then only the once.  
Medical evidence 
Dr Chiranjal Saikia 
63	Dr Chiranjal Saikia is a general practitioner at the Nagambie Medical Centre.  In a brief report dated 16 May 2019, he notes a back injury suffered while trying to restrain a man in 2015.  There is an odd mention of the wearing of a vest: 
“The requirement to wear an equipment vest was quite justifiable in regard to the sustained injury”.  
64	Dr Saikia said the cause of Mr Leahy’s back pain was the worsening of the disc bulge at L5-S1 which caused a narrowing of the right subarticular recess and the central canal.  There was possible impingement of the descending right S1 nerve root.  Because of the similarity of the language, Dr Saikia is reciting the findings of the MRI scans taken on 28 August 2018.  
65	To Dr Saikia, the prognosis was uncertain.  Treatment through a physiotherapist and chiropractors had not resolved the pain: further neurosurgical assessment may be necessary.  
Dr Abdul Atif      
66	Dr Abdul Atif is a general practitioner at the same clinic as Dr Saikia.  In his brief report dated 30 April 2021, his diagnosis was confined to work-related lower back pain, radiating to the right leg.  There was mild improvement in the level of pain due to the taking of Lyrica.  The Lyrica caused mild light headedness and a gain in weight.  
67	Generally, the level of pain is 4 out of 10 but this can increase through certain activities: walking more than 600 metres; lifting something weighing more than 2 kilograms; repeated bending, and sitting in one posture for a long time.  
68	Mr Leahy’s pain limits his capacity for work, in that he must change his posture regularly and cannot do strenuous physical activity.  These limitations also affect his activities of daily living, including cooking and cleaning.  Mr Leahy cannot now play golf and tennis or play with his children.  
69	There is an extract from the Centre’s clinical notes.  When Dr Atif saw Mr Leahy on 3 December 2020, he noted the pain was well controlled by Lyrica and Mersyndol, and gave prescriptions for both.  The Lyrica is prescribed at 300 milligrams per day with a maximum of 300 milligrams three times a day.  
70	In cross-examination, Mr Leahy disagreed that these medicines well control his pain, adding that he asked for stronger medicines, but Dr Atif refused.  There is some support for Mr Leahy’s evidence in some of the entries in the clinical notes of the Nagambie Medical Centre.      
Dr Janaka Seneviratne 
71	Dr Janaka Seneviratne is a neurologist.  On or about 25 May 2018, he examined Mr Leahy at the request of an authorised agent.  
72	Dr Seneviratne took a history of the arrest and the wearing of the vest, although he incorrectly dates the arrest.  
73	On examination, Dr Seneviratne found, in part: 
“Lower extremities: he has normal motor and sensory examinations bilaterally.  Reflexes symmetrical and normal bilaterally.  Tone was normal bilaterally.  Plantars flexor bilaterally.  There was mild tenderness in the lower back region detected.  His lower back range of movements were restricted with flexion at 60 degrees, extension at 15 degrees, lateral flexion to the left at 30 degrees, to the right at 20 degrees, rotation to the right at 20 degrees, rotation to the left at 30 degrees.  His gait was normal.”
74	Dr Seneviratne diagnosed musculoskeletal injuries to the lumbar spine and nerve root irritations or radiculopathies of the L5 nerve roots bilaterally and considered Mr Leahy had suffered a new injury and not an aggravation of an existing degenerative condition.
75	Although placing restrictions on what Mr Leahy could do physically (mainly in the areas of lifting, pulling, pushing and twisting), Dr Seneviratne considered him unfit for his previous police duties but fit for his current occupation as a social worker.  
76	He recommended gentle physiotherapy and small doses of a neuropathic medicine for pain.  
Dr Yvette Le Cerf 
77	Dr Yvette Le Cerf is a chiropractor.  She has treated Mr Leahy since 29 January 2018.  At his first attendance, she recorded his complaints as “lower back pain, collapsed disc and nerve pain”.  This pain first appeared in 2014 when he was tackled by a criminal.  She recorded his symptoms as “acting, stiffness, sharp, stabbing”.  As to aggravating factors, she noted “bending/laying down aggravates.  Nothing relieves, only mersyndol”.  She recorded a figure, 9, for the current intensity of his symptoms.  
78	Mr Leahy has attended her regularly.  Her treatment included “a range of gentle chiropractic manipulative techniques, myofascial release and stretching and strengthening exercises”.  The aim of her treatment was to improve his “lumbosacral joint mobility”.  He has responded “quite favourably” to treatment through a significant reduction in his lower back pain and improvement in his active lumbopelvic active range of motion.  She describes this improvement as immense since the start of treatment.  
79	She noted: 
(a)	his pain is located in his lower back area and is more stiffness than sharp pain, except moving the wrong way can produce a grabbing sensation.  There is no radiculopathy down his legs.  I am uncertain as to the significance of the finding of no radiculopathy.  It may or may not mean there is no pain in the legs.; 
(b)	he no longer has a painful antalgic gait; 
(c)	compared with his initial presentation, he has no issues with “sitting to standing”, which I would interpret to mean rising from a sitting position to a standing position;  
(d)	he is no longer tender in the S1 sacral area when palpated; 
(e)	although the Kemp test produced symptoms in the lower right lumbar region, they were of slight pain and stiffness; 
(f)	she identifies hypertonic muscles bilaterally in three muscles groups, two near the lumbar spine and the other in the upper spine.  I do not understand the significance of that finding; 
(g)	straight leg raising did not produce pain in the low back but produced tension in the right hip and right hamstring.  I suppose this finding reinforced her finding of a lack of radiculopathy; 
(h)	his pain no longer interferes with his sleep or general daily activities;
(i)	he is able to lift heavy weights at the gym on a regular basis without aggravating his lower back pain;
(j)	occasionally, this pain is aggravated, usually by his performing physical labour (e.g.  heavy lifting or using a chainsaw);
(k)	sitting for long periods can aggravate this pain but he can manage this pain if he is able to get up and walk throughout the day;  
(l)	on average, his assessment of his level of pain on a visual analogue scale is 3 out of 10 as opposed to 8 to 9 out of 10 when she first saw him.  
80	In her report, it appears Dr Le Cerf does not grapple with the effect of the 2014 incident on the condition of his back.  It appears she is unaware of the allegation regarding the ballistic vest.  Apparently, she sees Mr Leahy’s condition as a product of the irreversible deterioration of the osteoarthritis in his lower back.  
81	The final sentence of her report is quixotic: 
“I do believe there are yellow flags for psychosocial indicators, which are creating barriers to recovery and thus inhibiting Steven’s progress.”  
82	The defendant obtained the clinical notes of Dr Le Cerf’s practice.  It extracted the notes of six attendances between 29 June 2018 and 3 March 2021.  Except for the last entry, Dr Le Cerf attended Mr Leahy.  Her notes are detailed and readable because they are typed.  Nevertheless, they are understandable in part only because of the cryptic nature of the entries.  
83	29 January 2018 was Dr Le Cerf’s first attendance upon Mr Leahy.  Under the heading “Onset”, she noted – “Police work – injury at work, tackled hard and heavy belt and vest aggravates pain”.  Under the heading “Intensity (How extreme are your current symptoms?)”, she inserted the number “9”.  The location of the pain was across his low back.  The type of pain was “sharp, grabbing, stiff, achy”.  She noted the medicines Mersyndol and Voltaren.  
84	There is a gap in the clinical notes until November 2020.  
85	For 2 February 2021 under the heading “Patient comments”, she noted: “LBP – more stiff slightly achy – no sharp pain past 3 weeks.  Non-compliant with exercises given, doing back strengthening and core exercises at gym.”  Under the heading “Intensity (How extreme are you[r] current symptoms)”, she inserted the number “2”.  
86	In the other attendances on 12 January 2021, 8 December 2020 and 10 November 2020, the intensity was “2” on each occasion.  Immediately below that entry is another “Duration and timing”.  For each of her entries, she has inserted “75% of the time”.  I would interpret that to mean he has a pain level of 2 out of 10 for 75 per cent of the time and 25 per cent of the time it is greater.  
87	As recorded in her notes, Mr Leahy’s comments remained largely the same: 
(a)	on 12 January – “LBP – more stiff rather than achy – intermittent sharp P when doing incorrect movements, but overall going well.  2 HA’s last month.”  I do not know what “HA” means;
(b)	on 8 December 2020 – “LBP.  Constant dull ache and stiffness.  At gym, strengthening legs and back extensors – helping”; 
(c)	on 10 November 2020 – “LBP decreased, no pinching pain, more dull ache and stiffness.  At gym past 2 weeks and playing tennis, helping”.  
88	During cross-examination, the entry for 2 February 2021 reads – “More stiff slightly achy – no sharp past 3 weeks”.  Mr Leahy agreed that was how he felt on the day and there was no sharp pain in last three weeks.  He denied telling her his pain score was 2, saying that that was her figure.  
89	As to Dr Le Cerf’s report, in cross-examination, Mr Leahy agreed his pain had reduced with the chiropractor’s treatment but disagreed his back pain had reduced significantly, telling her he feels stiffness more than sharp pain, the range of movement had improved immensely or his pain no longer interferes with sleep or general daily activities.  To her statement, he can lift heavy weights at the gym, he says he does not know what she means by “heavy”.  He did report hurting his back moving house.  As to the entry on 5 June 2020, he says he was not using the chainsaw but assisting his son.  
Dr Raelene Hiddle 
90	Dr Raelene Hiddle is a chiropractor.  Among the clinical extracts assembled by the defendant is her note of an attendance on 14 December 2017.  She took a brief history: 
“He is a police officer – 4 years ago he tackled bad guys.  He was bent backwards over a table during a fight.  The next day his boss (sergeant?) recommended that he report it to work cover.  He did.  Over the next 2 years it got sorer and sorer.  For the last 2 years he struggles to get out of bed as he tips gingerly out he needs to knee[l] on the side and stretch his low back.”  
91	And she observed: 
“Fit looking guy – who struggles to walk – really painful gait.  Gets out of the chair but slowly and painfully.”  
Mr Girish Nair 
92	Mr Girish Nair is a neurosurgeon.  On 5 August 2019, he examined Mr Leahy at the request of his general practitioner.  Mr Leahy complained of ongoing back pain which he felt was worsening.  There was no pattern as to why his pain worsened.  
93	On examination, Mr Nair found his straight leg raising on the right was limited to about 30 degrees.  The gait was normal.  There was no focal neurological motor deficit.  The reflexes were normal.  
94	Clinically, Mr Nair suspected right S1 radiculopathy with L5-S1 discogenic low back pain.  He recommended MRI scans, a CT SPECT bone scan and dynamic x-rays to investigate further.  
95	Dr Nair did not see Mr Leahy again.  Although Mr Leahy’s counsel suggested the reason was due to finances, there was no evidence on the point and I do not understand the defendant conceding it.  
Dr Nahida Khan
96	Dr Nahida Khan is a general practitioner.  On 8 December 2020, he completed a “Medical Practitioner Questionnaire”.  
97	Dr Khan noted poor sleep and low mood since 2 June 2020 as Mr Leahy’s presenting symptoms.  
98	As to capacity for work, he advised: 
“No capacity to work due to poor mental health currently.  Not sleeping, depressed on antidepressants and sleeping tablets.  Seeing counsellor too.”
Mr Roy Carey 
99	Mr Roy Carey is a consultant orthopaedic spinal surgeon.  On 8 January 2020, at the request of an authorised agent, he examined Mr Leahy for the purposes of an impairment assessment.  
100	Aspects of Mr Carey’s examination revealed: 
“… He walked with no limp.  He could heel walk but tip toe walking was uncomfortable on the right.  
 Standing, the pelvis was level.  The lordosis was lost – the back appeared somewhat flat.  There was some right lumbosacral tenderness but no non-organic signs.  
 Flexion was such that the lordosis did not reverse and he could barely touch his patellae.  Extension, however, was almost nil because of the subject pain.  Lateral flexions and rotations were markedly and symmetrically restricted because of pain.”  
101	Mr Carey viewed four radiological examinations: MRI scans of October 2017 and three investigations on 11 September 2019.  I note Mr Carey viewed the x-rays taken on 11 September 2019 and disagreed with the finding by the radiologist of sacralisation.  
102	Mr Carey considered: 
“My opinion is that Mr Leahy sustained either a lumbosacral disc injury or aggravation of a pre-existing lumbosacral disc degeneration in the course of his work as described, commencing with an acute incident in 2013 and aggravated by the requirement to wear his equipment vest 3.10.2016.”
103	Later in his report, he firmed his diagnosis to an aggravation of pre-existing lumbosacral disc degeneration producing low back pain and right sciatica.  He foresaw continuing discomfort into the foreseeable future.    
Mr Rodney Simm 
104	Mr Rodney Simm is an orthopaedic surgeon.  On 29 October 2020 and on 31 March 2021, he examined Mr Leahy at the request of the defendant’s solicitors.   
105	At his first examination, he noted: 
“When physically examined he presented evidence of pain and disability.  He seemed to have some difficulty standing from a seated position.  
 He walked with a rather slow shuffling gait, but without a gait abnormality.  At times whilst moving he groaned, presumably because of pain.  He was just able to rise on his toes and seemed to suffer pain doing so.  He was able to tap each foot, but seemed to have some difficulty tapping the right foot because of pain.  He could adopt a half-squatting position and rise without evidence of quadriceps weakness.  He could stand on each leg, but tended to overbalance and used a nearby chair for support.  The Trendelenburg signs were negative.  
 Thoracolumbar movement was presented in a guarded manner and was associated with evidence of pain.  Forward flexion was to 30 [degrees].  He seemed unable to bend forwards to reach his knees.  Extension was to 20 [degrees].  Lateral flexion to the right and left sides was 20-30 [degrees].  Rotation to the right and left sides was to 30 [degrees].”
106	At the second examination, findings were largely similar.  Certainly, the restrictions of movement of the thoracolumbar spine remained the same: Forward flexion 30 [degrees], extension 20 degrees and lateral flexion and rotation to each side 20 to 30 degrees.  
107	As is the case with the practitioners in this case, the description of the vest is meagre.  Mr Simm does better than most but his description is also meagre: 
“Up until 2015 the protective vest was taken in the divisional van, but wearing the vest was optional.  From about 2015 it was compulsory for a police officer to wear the vest to attend any call-out.  He described the vest as a stiff, one size fits all, uncomfortable device.  It was much more uncomfortable when it was worn in the divisional van because of the cramped seating in the van.”
108	In his first report, Mr Simm noted the reference in AMA Guides to the Evaluation of Disease and Injury Causation (“the Guides”) to a Canadian study of the wearing of duty belts.  When asked whether wearing a vest caused further or additional injury, Mr Simm said: 
“There was no further injury as a result of wearing an operational equipment vest.  This statement is based on my understanding that an injury is the application of an abnormal or excessive force, which causes tissue damage.  Wearing the equipment was responsible for an ongoing exacerbation of symptoms.  These symptoms have persisted since ceasing those work activities and, in the absence of recovery from the exacerbation of back symptoms, it may be accepted that he has an ongoing work-related condition.  However, I do not believe the wearing of the vest has made any difference to the already symptomatic degenerative lumbar disc pathology.”    
109	And to the question – what would be the mechanics of such injury: 
“I am not able to postulate how wearing a vest could cause an injury that would damage the compromised degenerative changes in the lumbar intervertebral disc.  In the AMA Guides to the Evaluation of Disease and Injury Causation reference is made to a study of law enforcement officers in Canada.  It found that the wearing of a duty belt did not increase the incidence of low back pain.”
110	In his second report, Mr Simm returned to the Canadian study and its finding.  He considered the 2013 incident caused an unresolved aggravation of Mr Leahy’s pre-existing L5-S1 lumbar disc degeneration.  
111	In answer to the question – whether the plaintiff suffered a further or additional injury as a result of wearing the integrated operational equipment vest – he said: 
“There was no additional injury.  The wearing of the equipment vest may have led to some increased pain at the time, but the relatively minor increase in body weight transmitted through the lumbar spine as a result of wearing the vest could not cause damage and lead to any ongoing symptoms from the pre-existing degenerative lumbar spine pathology.  I have referred to the often quoted study of the Royal Canadian Mounted Police above.” 
112	What the Guides say about the Canadian study appears at p 735:  
“LEOs [law enforcement officers] with back pain blamed the weight of the duty belt while sitting in a car seat.  A random sample of 1002 officers of the Royal Canadian Mounted Police was surveyed about their symptoms of low back pain and possible risk factors.  The prevalence of ‘chronic or recurring low back pain since joining the force’ was 54.9%.  The 1-year prevalence was 41.8%, which was similar to the general public.  The prevalence of back pain was the same, whether officers were driving for more than half a working day or not, and whether they were wearing a duty belt or not.”   
113	The study deals with a duty belt worn by Canadian police and not with ballistic vests.  My understanding of such vests is that they provide a protective barrier to bullets or sharp objects.  They are worn at the front.  Such vests are very different from duty belts.  In my former judicial life, and in particular, my last judicial office, I had knowledge of duty belts worn by members of Victoria Police.  An  issue arose in the context of whether operational police members would be allowed to enter a courthouse wearing the belt.  The belt enabled the attachment of a pistol, retractable baton and spray.  There is a world of difference between that duty belt and a ballistic vest.  Without more, I cannot see how Mr Simm’s reliance on the Canadian study assists.  
114	This issue was not raised in oral argument.  I caused to be sent to the parties’ practitioners an email setting out, in effect, the previous paragraph and invited submissions.  Both parties responded promptly by email.  I have considered both responses.  I do not consider the reliance of Mr Simm upon the Canadian study  can be downplayed in the manner contended for by the defendant.  It figures too largely in his reports.  On my reading, he uses its findings to support his conclusion that wearing the vest would not cause damage and lead to ongoing symptoms from the pre-existing pathology.  In fairness, he does also rely on the mechanical effect of increased body weight and the relatively minor contribution made by the vest but without Mr Simm being able to discuss his reasoning I am left with such doubt about the validity of his conclusion as to reject it.   
Professor Richard Bittar 
115	Professor Richard Bittar is a neurosurgeon.  He is a clinical professor at Deakin University.  On 19 March 2021, he examined Mr Leahy at the request of his solicitors.  
116	Professor Bittar understood Mr Leahy was now working about 40 hours per week as an advanced child protection practitioner, which was a relatively light physical role.  He avoided sitting and standing for extended periods and is able to alter his posture as required by fluctuating levels of pain.  
117	Mr Leahy told Professor Bittar of the 2013 incident and the wearing of ballistic vests.  He said the vests felt heavy, were uncomfortable to wear and not tailored for the individual, even though they had adjustable straps.  Shortly after wearing the vests, he experienced worsening of his lower back pain, particularly while wearing the vest seated or driving a van.  Moreover, his right leg pain became more severe and constant.  
118	On examination, Professor Bittar found: 
“He walked with a slightly antalgic gait.  He had moderate restriction of lumbar spine flexion and severe restriction of lumbar spine extension.  Extension was more painful than flexion.  [H]e had bilateral lumbar paravertebral tenderness and muscle spasm.  [S]traight leg raising was marginally restricted on the right-hand side.  [N]eurological examination of his lower limbs did not reveal any evidence of radiculopathy or myelopathy.  [T]here was no evidence of abnormal illness behaviour.”  
119	He read the reports of the 11 October 2017 MRI scans and 28 August 2018 CT scans.  
120	Professor Bittar diagnosed aggravation of lumbar spondylosis, which was causing pain in the lower back and right leg.  
121	He saw the 2013 incident and the subsequent wearing of vests as both being significant contributing factors to the injury he described.  His only comment on their respective contributions was: 
“Noting the original injury in 2013, I do consider your client’s employment from 2016 and the wearing of the ballistic vest was a significant contributing factor to the aggravation of his back condition.  His back pain had been stable up to that point and he was largely able to remain at work as a police officer during that time.  His leg pain was relatively mild and intermittent.  In my opinion, as a result of wearing the ballistic vest, his lower back pain has become significantly worse, as has his right leg pain which has become constant.  His degree of disability has increased significantly as a result of the ballistic vest, and his work capacity has deteriorated.”  
122	Professor Bittar denied Mr Leahy had any realistic capacity to return to his pre-injury duties as a policeman.  He could work in a sedentary role where he can change his posture frequently.  This partial incapacity for work was permanent.  
123	Professor Bittar was guarded in his prognosis due to his longstanding symptoms.  Nevertheless, he recommended three further forms of radiology and nerve conduction studies and electromyography.  
Dr Radanjali Ratnayake 
124	Dr Rasanjali Ratnayake is a consultant psychiatrist.  On 25 November 2020, she interviewed Mr Leahy at the request of an authorised agent.  
125	Dr Ratnayake diagnosed an Adjustment Disorder with Mixed Anxiety and Depressed Mood.  She considered he was incapacitated for work psychologically.  Whether that remained the situation depended on the efficacy of escitalopram.   
Clinical records 
126	Both parties exhibited certain medical clinical records: Nagambie Medical Centre; Primary Medical and Dental Clinic, Melton; Mallee Track Medical Centre, and Goulburn River Group Practice.  
Melton 
127	These records are from 10 July 2010 until 10 March 2015.  Some of the entries deal with his back.  Very few contain useful information about examination results.  For example on 11 November 2013 under “Examination”, Dr Read records: “tender L4-5 area, reduced flexion of lumbar spine”.      
Nagambie Medical Centre 
128	These records are more extensive, covering the period between 21 November 2018 and 30 April 2021.  Despite many entries concerning the back, only one contains the results of an examination.  On 9 July 2019, D Nazir recorded: 
“B/L paraspinal lower lumbar region tenderness on palpation.  R>L.  No midline tenderness.  No bony deformity.  No LL neuro.  normal gait.  SLR limited on right.  FF – limited sec to pain.  No saddle anaesthesia.” 
Mallee Track Medical Centre
129	The records set out three visits in 2017.  Only in one is there any recording of examination findings.  On 15 September 2017, Dr Takla recorded: 
“SLR reduced R) side, reflexes, power and sensation intact possibly slightly affected R) side.”
Goulburn River Group Practice 
130	These records contain two entries, one in each of 2018 and 2019.  Neither entry records any examination findings.  
Radiology
131	I have already referred to the CT scans taken on 11 November 2013, the MRI scans taken on 11 October 2017 and the CT scans taken on 28 August 2018.  
132	At the request of Dr Nazir, on 11 September 2019, x-rays were taken of the lumbosacral spine and sacroiliac joints.  The findings were: 
“Normal lordotic curve preserved.  There is hemi lumbarisation of S1.  Moderately severe degenerative disc disease L5-S1.  Vertebral body height is normal.  Vertebral bodies and pedicles are intact.  The sacroiliac joints are normal.”  
Legal considerations 
133	Turning to paragraph (a) of the definition of “serious injury”, the word “serious” is explained in two further paragraphs of s325(2).  First, relevantly, it is satisfied by reference to the consequences to Mr Leahy of any impairment or loss of a body function with respect to pain and suffering when judged by comparison with other cases in the range of possible impairment or loss of body function.  Second, an impairment or loss of a body function is not serious unless the pain and suffering consequence is, when judged by comparison with other cases, in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked, and being at least very considerable.  
134	The adverb “very” qualifies the noun “considerable”.  The following  passage from the joint judgment in Sabo v George Weston Foods is important:  
“In considering whether Mr Sabo’s impairment is ‘at least very considerable’ weight must be given to the adverb ‘very’.  As Callaway JA said in TAC v Dennis: 
‘Many [impairments] are considerable, in the sense that they are important or substantial, without being very considerable’.”  
135	To emphasise the nature of the comparison, the Court, in TTB SMS Pty Ltd v Reading, said:
“The evaluation required of the trial judge, and this Court, involves a comparison of the worker’s impairment not just with other impairments of the hand, but also with other types of physical impairments that may be suffered, including impairment of the brain, the spine and the large joints such as the knee and shoulder.  Those other physical impairments may involve constant pain, significant medical treatment and medication.  They may also involve sleep deprivation, or an inability or reduced ability to socialise or work.”
136	Because his complaint of pain figures significantly in Mr Leahy’s case, I was referred to the observation of Dodds-Streeton in Kelso v Tatiara Meat Co Pty Ltd: 
“The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”  
137	In Sabo’s Case, an earlier paragraph in the joint judgment dealt with Mr Sabo’s return to work: 
“The fact that Mr Sabo is able to return to work full-time driving a forklift, does not preclude him from showing that the pain and suffering consequences of his impairment are serious.  Such an approach would be a disincentive to workers attempting to return to work on lighter duties and would be inconsistent with s 3(b) of the Act, which provides that one of the Act’s objects is to provide ‘for the effective occupational rehabilitation of injured workers and their early return to work …”.   
138	Under the heading of “The disabling effect of pain”, Maxwell P summarised the authorities on this point in Haden Engineering Pty Ltd v McKinnon: 
“As to capacity for work, it is necessary to identify whether and to what extent the plaintiff is prevented by the pain from performing the duties of his/her previous employment.  The fact the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury.  It is simply one of the matters to be taken into account.  What matters in this regard is the extent to which ‘an area of work which [the plaintiff] enjoyed has been closed off to [him or her].”
Discussion 
Credit 
139	As often happens in these applications, the plaintiff’s credit is an issue.  The defendant’s counsel submitted Mr Leahy had a selective memory, which I understood to mean his description of his condition varied depending on the matter he was pursuing at the time.  This is an understated way of submitting he is untruthful.  Among other things, the defendant pointed to paragraph 23 in his statement to investigators: 
“Prior to the onset of all of this, my health was really good.  Seriously good.  I was maintaining my weight.  I was still able to do my own exercise in COVID period.  I was still doing my own thing.  I’m not a terribly complex person.  It’s pretty simple.  I get up.  I go to work.  I come home.  I go to the gym, socialise, see my friends.  My kids are older so they’re adults.  Then you just go to bed, then you get up a[nd] do it all again.  That’s about it.”    
140	Again, at paragraph 52: 
“I used to have sporting interests.  I used to have sporting interests.  I used to like playing tennis.  I liked to go to the gym, play squash.  Golf if I could.  I’ve stopped these because I’m sitting in a house doing nothing and COVID also stopped a lot of that as well at the same time.” 
141	The statement was made on 23 November 2020.  This passage contrasts with paragraphs from Mr Leahy’s first affidavit sworn on 31 March 2020.  For example: 
“I have constant pain in the right side of my lower back.  I also get pain shooting down through my right buttock and leg as far as the toes in my right foot.  The shooting pains are not constant, but they come on regularly.  The shooting pains can come on after very simple movements and sometimes even whilst I am sitting still.  I take Mersyndol Forte for pain relief.  It does not get rid of the pain, but reduces it temporarily.”
142	Lest it was thought the period of employment with DHHS had resulted in a marked improvement in the symptoms of his back, buttock and lower limb, Mr Leahy deposed in his second affidavit sworn 23 April 2021: 
“My back and leg pain remain much the same as described in my earlier affidavit.  There has not been any improvement.” 
143	And: 
“In addition to the normal level of constant pain in my lower back, I get severe flare-ups of back and leg pain that are quite incapacitating.  I am unable to predict when these flare-up’s will occur, but I get a flare-up at some point most days.  If I get a severe bout of pain whilst at work, I need to stop what I am doing and wait for it to pass.” 
144	In re-examination, it emerged he has not played tennis, golf or squash for many years.  
145	Mr Leahy’s counsel submitted Mr Leahy was an upfront and candid witness where he made concessions in his evidence which were not wholly supportive of his case.  He gave no examples.  He referred to Mr Carey’s assessment of Mr Leahy as a genuine witness to his complaints with no evidence of embellishment.  He also submitted no practitioner expressed doubt over his credibility or said he was embellishing or exaggerating his complaints.  
146	The defendant pointed to inconsistencies in what he told practitioners and what he was saying on oath:
(a)	on 25 November 2020, he told Dr Ratnayake of his anxiety at being stood down, his difficulty sleeping, his lost motivation and stopping attending the gym and exercising; 
(b)	to the same practitioner, that he injured his lower back six or seven years earlier and occasionally has back pain; 
(c)	on 10 November 2020, Dr Le Cerf noting “At gym past 2 weeks and playing tennis, helping”; 
(d)	the discrepancy in symptom or pain levels between 2 noted by Dr Le Cerf and the average severity of pain at 8 to 9 out of 10 for Professor Bittar and 5 out of 10 for Mr Simm.  
147	Although paragraph 23 of his statement to investigators was made in the context of a claim for compensation for a mental injury, too much of it deals with the physical.  In light of Mr Leahy’s evidence of considerable physical impairment, the paragraph is untrue.  It is a prior inconsistent statement.  
148	Again, Mr Leahy gave his reasons for resigning from Victoria Police with emphasis on his physical state.  Since June 2019, he had been suspended.  In November, he was advised of an enquiry and told of the four charges against him and the detailed particulars of each charge.  Two of the four charges were very serious.  The allegations, if correct, may well have seen him dismissed.  In addition, those charges could have given rise to criminal charges.  His resignation brought the enquiry to an end.  It is impossible to believe the existence of this enquiry did not play a greater part in Mr Leahy’s decision to resign.   
149	I do not accept the major reason Mr Leahy resigned was the state of his back for three reasons: 
(i)	Mr Leahy was working as an operational policeman until his suspension; 
(ii)	it is too much of a coincidence that his resignation comes after the receipt of the 1 December 2017 letter and before the start of the enquiry; and  
(iii)	the resignation came after Mr Leahy was offered a position with DHHS, something he sought after being suspended.  
150	Mr Leahy is an unreliable witness.  His evidence must be treated with caution.  
Injury arising out of or in the course of employment
151	Mr Leahy suffered an injury to his spine arising out of or in the course of his employment with Victoria Police.  The defendant has admitted as much in several acceptances of his claim for compensation, culminating in the payment of an impairment benefit for an injury to his spine.  This is an application of the principle in Ansett Australia Ltd v Taylor, although not argued as such.  
152	Nevertheless, there is an abundance of medical opinion supporting this finding.  
153	Professor Bittar supports an injury arising out of or in the course of his employment.  It is an aggravation of a pre-existing condition to which the employment is a significant contributing factor.  He holds this view in relation to the wearing of the vest.  
154	Earlier in these reasons, I quoted a paragraph from Mr Carey’s report.  Plainly, he holds the view of a causal link between Mr Leahy’s employment with Victoria Police and the injury to his lumbosacral spine.  More particularly, he links the wearing of the vest to the causation of that injury, whether simpliciter or extended by way of aggravation.   
155	Also from the passage I quoted from Mr Simm’s report, he disputes the existence of an “injury” due to the wearing of the vest.  It turns on Mr Simm’s understanding of the meaning of “injury”.  To him, an “injury” is the application of an abnormal or excessive force which causes tissue damage: there was no pathological change.  Putting aside the question of “injury”, Mr Simm saw a temporary exacerbation of symptoms due to the wearing of the vest.     
156	The plaintiff’s counsel submitted this was not the definition of “injury” in workers’ compensation legislation without submitting what is.  The defendant’s counsel made no submission on the point.     
157	The concept of “injury” in the Act does not require a pathological change, even a temporary exacerbation of symptoms constitutes an “injury”.  I am satisfied that Mr Leahy suffered an injury to his spine arising out of or in the course of his employment with Victoria Police.  The injury is the aggravation of his pre-existing spondylosis and the 2013 incident and the wearing of the ballistic vest were significant contributing factors to the sustaining of the injury.  
Permanency  
158	The opinions of Professor Bittar and Mr Carey establish the permanency of Mr Leahy’s impairment.  I accept their opinions.  
Comparison between pre-2016 and post-2016 
159	Mr Leahy complicated his application by relying on the aggravation of the pre-existing injury caused by the wearing of the ballistic vest.  In a sense, it was an aggravation upon an aggravation.  
160	The only evidence of the effects of the aggravation in terms of pain came early in Mr Leahy’s cross-examination: 
Q:	“Well, if you would try to apportion it between the vest and the level of pain before the vest, would you say your problems got 50% worse, 10% worse, 99% worse, how would you apportion it just roughly like that? – 
A:	I would say 70/30.  It was 70% worse after I started wearing the vest.”
161	There the matter lay as it was not revisited in re-examination.  
162	After the 2013 incident, Mr Leahy attended a general practitioner, who arranged CT scans on 11 November 2013.  He was prescribed Tramal and underwent massages, physiotherapy and chiropractic treatment.  After 30 December 2013, he did not return to his general practitioner’s clinic until 30 September 2016.  Between those dates, he had sporadic attendances upon another medical clinic and a physiotherapist and chiropractor.   
163	The 2013 incident saw Mr Leahy take no time off work, although his colleagues made allowances for him.  Again, after the compulsory wearing of the vests, he did not take time off work.  He resumed medical treatment on 7 June 2017.  Overall, his treatment of any form is again sporadic until he sees Dr Le Cerf in January 2018.  Thereafter, his chiropractic treatment is frequent.  His ingestion of pain-relieving medicines becomes significant.  
164	The objective evidence supports Mr Leahy’s assessment of the change in intensity of his pain due to wearing of the ballistic vests.  I accept his assessment.   
165	For completeness, despite the likely presence of degenerative changes in his lumbar spine, that area of his body was not symptomatic before the 2013 incident.  
Pain and medicine
166	Mr Leahy suffers constant right-sided lower back pain and, intermittently, pain “shoots” into his right buttock and into his right leg.  Owing to the seated nature of his current employment, he works in pain.  
167	Mr Leahy has taken two steps to lessen the intensity and duration of his pain.  Now, he takes Lyrica twice daily and Mersyndol daily.  He has taken these medicines for some time.  Indicative of his need for pain relief, he takes Lyrica despite its side effects: 
“When I take Lyrica, I feel quite drowsy and lethargic.  I have gained weight since swearing my earlier affidavit which I have been told is a common side effect of Lyrica.”
168	Dr Atif noted the same side effects of Lyrica.  The first of which he described as “mild light headedness”; the second as his gain in weight.  
169	Judging from the clinical records, Lyrica was substituted for Panadeine Forte because the latter should not be taken on a long-term basis.   
170	The fact he was not cross-examined about an ulterior motive for taking these medicines does not mean the defendant accepts there is a need for him to take them.  It is just his evidence is unchallenged on the point.  It remains a question whether I believe him.    
171	Apart from those observations, these medicines are taken at significant, therapeutic levels.  Because of the partial corroboration from the clinic notes, I accept Mr Leahy’s evidence of the inability of these medicines to control the pain, by which I understand him to mean eliminate it.  
172	Second, there is his regular, long-term treatment by the chiropractor, Dr Le Cerf.  The treatment has seen a significant improvement in his condition.  But there is no suggestion from Dr Le Cerf that the treatment should come to an end or its frequency lessened.  Since Dr Le Cerf sees the issue in medical, not legal, terms, she sees “the degree of osteoarthritis in his lower spine being irreversible”, which suggests her treatment will be ongoing.   
173	Mr Leahy said the figure “2” appearing in Dr Le Cerf’s clinical notes was not his figure but her figure.  I could accept his evidence on that point.  The figure “2” represents the level for 75 per cent of the time.  Presumably, for the remaining 25 per cent, it is greater.  This makes understandable the average figure in her report of “3”.  
174	Her assessment of the level of symptoms would be based on his description.  It may be a more accurate scaling than his, for she might understand the level of symptoms properly represented by 10 out of 10 than somebody who has not experienced such excruciating pain as to justify a 10.  
175	The level of symptoms is relatively low at 3 out of 10 on average.  It is constant with intermittent pain in the right buttock and leg.   
176	The overall picture is Mr Leahy suffers constant pain in his lower back.  Usually, the level of pain is at a modest level.  It does increase from time to time.  Occasionally, he experiences a shooting pain into his right buttock and leg.  The level of pain has reduced to the current level though a combination of analgesic medicines and frequent, regular chiropractic treatment.  There is no suggestion either the prescription of medicines or the chiropractic treatment will reduce or cease.    
Loss of movement 
177	What is clear at present is the loss of movement in Mr Leahy’s lumbosacral spine.  In 2020, Mr Carey noted flexion was such that the lordosis did not reverse and Mr Leahy could barely touch his patellae.  Extension was almost nil and lateral flexions and rotations were markedly and symmetrically restricted.  
178	In 2021, Professor Bittar noted a moderate restriction of lumbar flexion and severe restriction of extension.  
179	Also in 2021, Mr Simm found restrictions in the thoracolumbar movements with flexion at 30 degrees, extension at 20 degrees and lateral flexion and rotation on each side at 20 to 30 degrees.  In his earlier examination, Mr Simm noted: “He seemed unable to bend forwards to reach his knees.”  
180	In her report, Dr Le Cerf noted an improvement to his lumbopelvic range of motion.  It is impossible to tell from her clinical notes the extent of that improvement or even how restricted he was when she first saw him.  
181	As to the findings of Mr Carey, Professor Bittar and Mr Simm, as expected, there is some variability, but the overall picture is extensive restriction in the movements of the lower spine.  I accept that that is a correct reflection of that aspect of his lower back.  
Domestic activities 
182	This impairment of the motions of Mr Leahy’s lower back translates into significant restrictions on his activities of daily living.  He walks most days for 20 to 30 minutes before pain forces him to stop.  He can sit for about two hours before he needs rest and to exercise.  Standing increases his pain.  
183	After 30 minutes of driving, with increasing pain and stiffness, he stops the car if he can, gets out of the car and moves around.  He limits his carrying of shopping bags to relatively light weights.  He can climb and descend stairs without restrictions.  He does not attempt to run.  
184	Notwithstanding Mr Leahy as a witness, I accept he is restricted in these activities to the extent he claims.  They are consistent with the very significant impairment of the movements of his lower spine.   
Sleep 
185	In his first affidavit, Mr Leahy described the poverty of his sleep:    
“I sleep very poorly because of my back and leg pain.  I regularly wake up in pain and then, because I am uncomfortable, I cannot get back to sleep.  I cannot remember the last time I slept right through the night without waking in pain.”
186	This was said about two months before he was stood down from his work with DHHS.  The standing down affected Mr Leahy psychologically.  It affected his sleep as well, compounding the problems left by his physical injury.  However, in his statement to the investigators, he makes no mention of his physical injury, and his description of the psychological impact on his sleep is somewhat similar to the above-quoted passage.  Even though the issue with DHHS has now resolved and one would expect the impact of his work upon his sleep will have lessened now without disappearing altogether, the evidence is too uncertain to allow me to make any finding about physical impact upon his sleep.  
Treatment
187	I have already mentioned treatment.  It has been largely confined to general practitioners and chiropractors.  He saw a neurosurgeon, Mr Nair, but only once in 2019.  
188	The general practitioners confine their treatment mainly to the prescription of medicines for the relief of pain.  
189	The chiropractor, Dr Le Cerf, provides regular treatment.  The fact that further specialist intervention is not sought, suggests that the current treatment is successful in the eyes of Mr Leahy.  
190	Although opened that Mr Leahy did not return to Mr Nair because of a dispute over medical expenses, there is no evidence to that effect.  
191	Mr Leahy’s counsel submitted it was not the first time a doctor (or chiropractor) wrote a report trying to put a bit of a positive spin on their treatment and its effect.  What Dr Le Cerf says in her report seems based on her notes.  Mr Leahy’s counsel criticised the accuracy of Dr Le Cerf’s entries, submitting, on the basis of Mr Leahy’s evidence and her notes, that they came from 15-minute consultations.  
192	The entries for November 2020 to February 2021 are a good basis for the report.  It would be surprising that she would be overly optimistic in her clinical notes.  They are to guide her in her treatment of him.  Nevertheless, he returns to Dr Le Cerf for treatment.  He explained why in re-examination:                 
Q:	“Can you give His Honour some understanding of what the (sic) benefit you get and why it is you go?---
A:	Yeah.  So the reason why I go so regularly is because the pain, once it has been treated – she gives that instant – I want to say pop but for want of a better word, Your Honour – but it helps spread the disc out and reduces the – that pain that I experience, and then over the coming weeks it goes worse again, deteriorates again, then I go back to her, I go and get the same treatment, it helps again and that’s why I go so regularly and see her sometimes even more than once a month.”
Capacity for work
193	Returning to his reason for resigning from Victoria Police, Mr Leahy says there were two reasons: the state of his back; and the disciplinary hearing.  He says the former was the more important reason.  
194	I have summarised the four charges.  On paper, the first charge is the most serious.  In terms of the criminal law, it contains allegations of forgery and attempting to obtain a financial advantage by deception.  The fact of his resignation stopped the enquiry before it commenced.  It may well have stopped the commencement of a criminal proceeding.  I accept his impairment renders him incapable of returning to his operational policing duties but whether he could retain a career is uncertain.  It is true the allegations were not tested but they are highly detailed and one supposes there was evidence sitting behind the allegations.  In this context, I cannot give more than marginal weight to his loss of his pre-injury capacity.    
Conclusion
195	This is a difficult application.  It is made more complicated by Mr Leahy, in effect, relying on an aggravation of an aggravation of a pre-existing injury and his value as a witness.  
196	As a consequence of the injury caused by the wearing of the vest, Mr Leahy suffers constant pain but at a modest level.  It is kept at that modest level through the combination of frequent and regular chiropractic treatment and the extensive ingestion of pain-relieving medicines.  There is no end in sight for his pain and for both forms of treatment.  
197	After resigning from Victoria Police, Mr Leahy gained a significant position with DHHS.  He can cope with its demands physically.  Even apart from his injury, I suspect Mr Leahy’s career with Victoria Police was coming to an end.  Even though the injury prevents him from returning his pre-injury duties, for other reasons, he has lost little.  
198	The area of impairment is the lumbar spine.  This is an important area of the body with so many activities involving this part of the spine including sitting, standing, bending, lifting and twisting.  I am satisfied Mr Leahy has suffered a “serious injury”.  I will give him leave to commence a proceeding for the recovery of pain and suffering damages.  
199	I will hear the parties on the orders and the question of costs.                   
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